Election Law Commons^™

Prophylactic Redistricting? Congress’S Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley

William & Mary Law Review

The Voting Rights Act (VRA) has been an important mechanism for increasing participation by racial minorities in the electoral system. In recent years, however, the Supreme Court has demonstrated its willingness to reconsider the VRA’s constitutionality. Due to the broad prophylactic scope of section 2 of the VRA, two main developments pose risks to its continued validity.

First, the Supreme Court narrowed Congress’s enforcement power under Section 5 of the Fourteenth Amendment in City of Boerne v. Flores, and is likely to interpret Section 2 of the Fifteenth Amendment similarly. Section 2 of the VRA features many key characteristics of …

Race Or Party, Race As Party, Or Party All The Time: Three Uneasy Approaches To Conjoined Polarization In Redistricting And Voting Cases, Richard L. Hasen

William & Mary Law Review

No abstract provided.

A Reasonable Bias Approach To Gerrymandering: Using Automated Plan Generation To Evaluate Redistricting Proposals, Bruce E. Cain, Wendy K. Tam Cho, Yan Y. Liu, Emily R. Zhang

William & Mary Law Review

No abstract provided.

Taking Virtual Representation Seriously, Joseph Fishkin

William & Mary Law Review

No abstract provided.

Something Old, Something New, Or Something Really Old? Second Generation Racial Gerrymandering Litigation As Intentional Racial Discrimination Cases, Dale E. Ho

William & Mary Law Review

No abstract provided.

Intent Is Enough: Invidious Partisanship In Redistricting, Justin Levitt

William & Mary Law Review

When the Supreme Court last seriously grappled with partisan gerrymandering, all nine Justices concluded that an excessive injection of politics in the redistricting process violates the Constitution, but failed to agree on what is excessive (or who should decide). Commentators have since offered no shortage of assistance, offering various models to resolve exactly “how much is too much.” This effort is a sprint to answer the wrong question. It is perhaps the question Justices have asked, but not the one best illuminating the problem.

This Article suggests an alternative: not “how much,” but “what kind.” The Court wants to distinguish …

From Educational Adequacy To Representational Adequacy: A New Template For Legal Attacks On Partisan Gerrymanders, Christopher S. Elmendorf

William & Mary Law Review

For decades, legal attacks on partisan gerrymanders have foundered on a manageability dilemma: doctrinal standards the Supreme Court has regarded as judicially discoverable have been rejected as unmanageable, whereas the more manageable standards on offer have been dismissed as insufficiently tethered to the Constitution—that is, as undiscoverable. This Article contends that a solution to the dilemma may be found in a seemingly unlikely place: the body of state constitutional law concerned with the adequacy of state systems of public education. The justiciability barriers to partisan gerrymandering claims have near analogues in educational adequacy cases, yet only a minority of the …

The Gerrymander And The Constitution: Two Avenues Of Analysis And The Quest For A Durable Precedent, Edward B. Foley

William & Mary Law Review

It has been notoriously difficult for the United States Supreme Court to develop a judicially manageable—and publicly comprehensible—standard for adjudicating partisan gerrymandering claims, a standard comparable in this respect to the extraordinarily successful “one person, one vote” principle articulated in the Reapportionment Revolution of the 1960s. This difficulty persists because the quest has been for a gerrymandering standard that is universalistic in the same way that “one person, one vote” is: derived from abstract ideas of political theory, like the equal right of citizens to participate in electoral politics. But other domains of constitutional law employ particularistic modes of reasoning …

Gerrymandering And Association, Daniel P. Tokaji

William & Mary Law Review

No abstract provided.

Election Law “Federalism” And The Limits Of The Antidiscrimination Framework, Franita Tolson

William & Mary Law Review

If the United States Supreme Court conceived of the right to vote as an active entitlement that safeguards other fundamental rights rather than as a passive privilege that permits courts to prioritize state sovereignty over broad enfranchisement, then many of the errors that have become commonplace in our system of elections would not occur. It is unlikely, however, that the Court will take the steps necessary to extend the constitutional protections afforded to the right to vote. In recent years, the Court has sharply circumscribed Congress’s ability to protect the right to vote under the Fourteenth and Fifteenth Amendments, rejecting …

Redistricting Transparency, Rebecca Green

William & Mary Law Review

Until recently, legislative redistricting remained a relatively obscure topic for most Americans. In the upcoming 2020 round, increased public interest in the problem of gerrymandering, combined with the rise of technologies that empower public participation, will fuel public scrutiny of state redistricting processes at levels never before experienced. Are states prepared for this oversight onslaught? Will current redistricting transparency rules frustrate or nurture growing public interest? Can states take steps in advance of 2020 to ensure meaningful and productive public participation during the redistricting process? A thoughtful approach to redistricting transparency can both improve resulting maps and stave off litigation. …

Reapportionment, Nonapportionment, And Recovering Some Lost History Of One Person, One Vote, Pamela S. Karlan

William & Mary Law Review

No abstract provided.

The Invalidation Of The Maine Congressional Term Limits Law: A Vindication Of Democracy, David A. Soley

Maine Law Review

On November 8, 1994, the voters of Maine enacted a term limits law that arbitrarily limited the democratic right to vote for the candidate of their choice. The law provided that Maine's United States Representatives could not appear on the ballot after six consecutive years of service and that Maine's United States Senators could not appear on the election ballot after twelve consecutive years of service. On May 26, 1995, the United States District Court for the District of Maine found that the law was an unconstitutional violation of the Qualifications Clauses of the United States Constitution and permanently enjoined …

Quantifying Partisan Gerrymandering: An Evaluation Of The Efficiency Gap Proposal, Benjamin Plener Cover

Articles

Electoral districting presents a risk of partisan gerrymandering: the manipulation of electoral boundaries to favor one political party over another. For three decades, the U.S. Supreme Court has failed to settle on a legal test for partisan gerrymandering, and such claims have uniformly failed. Until recently. Plaintiffs prevailed before a three-judge federal panel in Wisconsin by leveraging a new measure called the "efficiency gap," which quantifies partisan gerrymandering in terms of two parties' relative efficiency at translating votes for their party into seats in government. The case is now before the Court, which may embrace the efficiency gap approach and …

Ineffective By Design: A Critique Of Campaign Finance Law Enforcement In The United States, Australia, And The United Kingdom, Kelly Ann Skahan

Washington International Law Journal

Though ostensibly tasked with enforcing their respective nations’ campaign finance laws, the Federal Election Commission (“FEC”), Australian Electoral Commission (“AEC”), and Electoral Commission (“EC”) are woefully unable to meaningfully address the evolving nature of campaigns or enforce existing regulations in the United States, Australia, and the United Kingdom, respectively. Attempts at enforcement are cut off at the knees by political infighting, half-hearted grants of independent authority, and a lack of institutional support. Conversely, the New York City Campaign Finance Board (“CFB”) is recognized as an example of meaningful enforcement and relative political independence. By implementing changes that translate the CFB’s …

Prophylactic Redistricting? Congress's Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley

Scholarly Publications

No abstract provided.

I Pledge Allegiance To The Party: Reclaiming The Associational Rights Of Independent Voters In Open Primaries, C. Alan Carrillo

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Citizens United V. Federal Election Commission, And The Inherent Unfairness To The “Un-United” American Citizen, Christopher J. Kantor

Writing Across the Curriculum

Among contemporary United States Supreme Court rulings that have impacted the structure of our nation, the 2010 case Citizens United v. Federal Election Commission resulted in significant political campaign finance reform that gave rise to an election system influenced by money, corporations, and powerful individuals. The ruling of Citizens United allows for the unlimited spending of corporations and labor unions on political expenditures and the limited disclosures of these campaign donors. This overturned precedent established in the 1990 case Austin v. Michigan Chamber of Commerce and the 2003 case McConnell v. Federal Election Commission, the respective rulings of which …

Whistleblowing Speech And The First Amendment, Ronald J. Krotoszynski Jr.

Indiana Law Journal

Alexander Meiklejohn, the iconic First Amendment scholar who expounded the democratic self-government theory of the freedom of speech, posited that for demo-cratic self-government to function, the voters themselves must possess the infor-mation necessary to hold the government accountable. Yet, the information neces-sary for the citizenry to render wise electoral verdicts not uncommonly belongs to the government itself, and government officials often prove highly reluctant to share information that reflects badly on them and their work. The lack of critically im-portant information about the government’s performance makes it difficult, if not impossible, for voters to hold government accountable on Election Day. …

The Surveillance Gap: The Harms Of Extreme Privacy And Data Marginalization, Michele Gilman, Rebecca Green

Faculty Publications

We live in an age of unprecedented surveillance, enhanced by modern technology, prompting some to suggest that privacy is dead. Previous scholarship suggests that no subset of the population feels this phenomenon more than marginalized communities. Those who rely on public benefits, for example, must turn over personal information and submit to government surveillance far more routinely than wealthier citizens who enjoy greater opportunity to protect their privacy and the ready funds to secure it. This article illuminates the other end of the spectrum, arguing that many individuals who may value government and nonprofit services and legal protections fail to …

Section 2 After Section 5: Voting Rights And The Race To The Bottom, Ellen D. Katz

Articles

Five years ago, Shelby County v. Holder released nine states and fifty-five smaller jurisdictions from the preclearance obligation set forth in section 5 of the Voting Rights Act (VRA). This obligation mandated that places with a history of discrimination in voting obtain federal approval—known as preclearance—before changing any electoral rule or procedure. Within hours of the Shelby County decision, jurisdictions began moving to reenact measures section 5 had specifically blocked. Others pressed forward with new rules that the VRA would have barred prior to Shelby County.

The 2016 Voting Wars: From Bad To Worse, Richard L. Hasen

William & Mary Bill of Rights Journal

No abstract provided.

Accountability Claims In Constitutional Law, Nicholas O. Stephanopoulos

Northwestern University Law Review

Several of the Supreme Court’s most controversial constitutional doctrines hinge on claims about electoral accountability. Restrictions on the President’s power to remove agency heads are disfavored because they reduce the President’s accountability for agency actions. Congress cannot delegate certain decisions to agencies because then Congress is less accountable for those choices. State governments cannot be federally commandeered because such conscription lessens their accountability. And campaign spending must be unregulated so that more information reaches voters and helps them to reward or punish incumbents for their performances.

There is just one problem with these claims. They are wrong—at least for the …

The Network For Justice: Pursuing A Latinx Civil Rights Agenda, Luz E. Herrera, Pilar M. Hernández-Escontrías

Faculty Scholarship

This article explores the need to develop a Latinx-focused network that advances law and policy. The Network for Justice is necessary to build upon the existing infrastructure in the legal sector to support the rapidly changing demographic profile of the United States. Latinxs are no longer a small or regionally concentrated population and cannot be discounted as a foreign population. Latinxs reside in every state in our nation and, in some communities, comprise a majority of the population. The goal of the Network for Justice is to facilitate and support local and statewide efforts to connect community advocates to formal …

One Person, One Weighted Vote, Ashira Pelman Ostrow

Florida Law Review

This Article argues that weighted voting should be used to comply with the constitutional one-person, one-vote requirement while preserving representation for political units on the legislative body. First, this Article demonstrates that weighted voting satisfies the quantitative one-person, one-vote requirement by equalizing the mathematic weight of each vote. Second, this Article demonstrates that weighted voting has the potential to remedy several negative consequences of equal- population districts. Specifically, this Article argues that by preserving local political boundaries, weighted voting eliminates the decennial redistricting process that gives rise to claims of partisan gerrymandering, enables local governments to function both as administrative …

A New Era For Judicial Retention Elections: The Rise Of And Defense Against Unfair Political Attacks, Hon. Barbara J. Pariente, F. James Robinson Jr.

Florida Law Review

The judicial-merit selection and retention system for appointing judges to the bench was designed to emphasize selection based on the judge’s qualifications and to minimize the influence of partisanship and politics in both the selection and retention process. Since 2010, increasingly strident and frequent political attacks on state supreme court justices facing judicial-merit retention elections present real dangers to a fair and impartial judiciary. These attacks are inherently different from the challenges facing the judiciary in states where supreme court justices are selected in contested judicial elections, especially those states that have partisan elections. Recent judicial-merit retention elections of state …

The Possibility Of Using Alternative Dispute Resolution For Election Law Disputes, Jessica Becerra

Pepperdine Dispute Resolution Law Journal

This article looks at the positive effects that ADR can have in resolving election law disputes before, during, and after elections. First, this article will focus on the significance of implementing ADR processes in resolving election law disputes. Next, this article will explain the background and impact that election law disputes have on voters, candidates, and the election process as a whole. This article will then explore why ADR processes should be implemented as opposed to using litigation to resolve election law disputes. After, this article will explain a proposed solution to resolving election law disputes through mediation or arbitration …

Did The African-American Electorate Unintentionally Help Elect Donald Trump President?, C. Daniel Chill

Touro Law Review

No abstract provided.

Money In Politics: Campaign Finance And Its Influence Over The Political Process And Public Policy, 52 Uic J. Marshall L. Rev. 185 (2018), Conrad Foreman

UIC Law Review

Money in politics has risen to the forefront of the public political consciousness in the decade since Citizens United v. FEC. At the root of the issue are deeply flawed Supreme Court rulings on the constitutional protection afforded to political spending and the definition of regulable "corruption," which have exacerbated issues in the American campaign finance system and effectively legalized political bribery. The purpose of this comment is to highlight the impact of campaign finance on public policy and ultimately propose that we, the American people, must amend our Constitution to restore a representative democracy.

Race And Representation Revisited: The New Racial Gerrymandering Cases And Section 2 Of The Vra, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

This article explores the Supreme Court's new racial gerrymandering cases and argue that those cases are on a collision course with Section 2 of the VRA. We revisit the Shaw line of cases and explain that the Shaw cases were more sympathetic to the representational rights of voters of color than are the new racial gerrymandering cases. This is primarily because the Shaw cases made room within the doctrine for the state to pursue descriptive representation for voters of color. We argue that new racial gerrymandering cases are inimical to descriptive representation. To the extent that voting rights scholars and …